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Frederick R. Remer
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Do I have to submit to a breath test?

When you are pulled over on suspicion of drunk driving, a police officer has several ways of determining whether you are too incapacitated to drive safely. The officer may instruct you to walk a straight line, touch your nose and perform other tasks. They will take notes about whether you appeared to be swerving in your vehicle before you stopped, whether your breath smelled of alcohol, or whether you slurred your words. All of this can and will be held as evidence against you in court. But some of the most compelling evidence comes from a test of your blood alcohol concentration, or BAC.

In California, the most common way for police to administer a BAC test are through a chemical breath analysis device, often called a Breathalyzer. Sometimes, they may order a blood draw for a blood test, or, under specific circumstances, a urine test.

Do you have to submit to the test? The short answer is yes. Whichever method the police use, under California law, drivers are presumed to have implied consent to submitting to a BAC test as a condition of receiving their driver's license.

There are harsh penalties for refusing to take a test, in addition to any penalties you might face related to drunk driving. Your license will be suspended for one year, if it's a first offense. If you offend again with a 10-year period, your license will be suspended for two years. A third offense within a 10-year period will result in a three-year suspension.

It's important to remember that even without the results of a BAC test to use as evidence, prosecutors can still use the police report and witness testimony against you to argue that you should be found guilty of drunk driving offenses.

Often, DUI defense strategies involve attacking the credibility of the BAC test and other evidence the prosecution relies upon. For example, a defendant may seek to show that the Breathalyzer was not properly calibrated, or that the officer used it improperly.

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